Citation Nr: 0938002
Decision Date: 10/06/09 Archive Date: 10/14/09
DOCKET NO. 04-21 100 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for a bilateral knee
condition.
2. Entitlement to service connection for a back condition.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Matthew W. Blackwelder, Associate Counsel
INTRODUCTION
The Veteran had active military service from November 1951 to
November 1953.
This appeal comes to the Board of Veterans' Appeals (Board)
from an April 2003 rating decision.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
In March 2008, the Board reopened the Veteran's claims for
service connection for back and knee disabilities and
remanded them for a VA examination and etiology opinion. Per
the Board's remand instructions, the RO scheduled the Veteran
for an examination. However, before the examination was to
take place, the Veteran's health care representative
contacted the RO and explained that the Veteran had been
hospitalized pending surgery and would not be able to attend
his scheduled examination. In August 2009, the Veteran's
wife informed the RO that the Veteran had been in the
hospital for more than 3 weeks, and she did not know when he
would be able to return home. The RO then denied the
Veteran's claim, finding that the evidence did not support
service connection for either his knees or his back.
It is unclear from a review of the claims file whether the
Veteran requested to have his examination cancelled entirely
or whether he merely was indicating that he could not appear
at the time his examination was scheduled. However, the
Veteran's representative has requested that VA should attempt
to provide the Veteran with an examination. This request is
reasonable and should be accommodated.
Additionally, it is unclear where the Veteran is currently
hospitalized; but if the Veteran is at a VA hospital, it
should be determined whether the requested examination could
be accomplished in that setting. If not, a medical opinion
of record should still be sought.
The facts of this case remain as they were at the time of the
Board's March 2008 remand. Service treatment records show
numerous knee-related complaints, although at least one
examination found no abnormal findings with regard to either
knee. There were also at least two complaints of back pain
in the service medical records. At the Veteran's separation
physical in November 1953, both his lower extremities and his
spine were found to be normal, although the Veteran testified
that he did not report anything on that examination because
he feared being kept in service longer.
At a VA examination in November 1967, the Veteran was noted
to have back pain, but no specific disability was noted; and
in 1981 the Veteran fell down stairs injuring his ribs, but
no mention of either the knees or back was made in the
treatment records.
In 1984, a VA examination, including x-rays, showed
degenerative arthritis in the Veteran's lumbar spine, and the
Veteran had painful (albeit full) range of motion of the
knees, and he was diagnosed to have knee pain of unknown
etiology.
In January 2003, a VA examiner rendered the impression of
service-connected arthritis of the lumbar spine and service-
connected internal derangement of the knees. However, this
seems to have been an expression of the examiner's mistaken
understanding that these disabilities had already been
adjudicated as service connected. Clarification is needed.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. Schedule the Veteran for an orthopedic
examination of his back and knees. If the
Veteran is hospitalized at a VA facility,
it should be determined whether the
examination can be conducted in his
hospital room. The Veteran's claims
folder should be made available to the
examiner for review prior to the
examination. The examiner should diagnose
any current knee or back disability(s),
and acknowledging the Veteran's history,
should then provide an opinion as to
whether it is at least as likely as not (a
50 percent probability or greater) that
any diagnosed knee or back disability(s)
either began during or was caused by the
Veteran's time in service, including the
relevant complaints noted therein. A
complete rationale for any opinion offered
should be provided.
2. If the Veteran is not physically able
to make it to his examination, his claims
file should be returned to the examiner
who conducted the January 2003 VA
examination, who should be asked to
clarify whether he meant to indicate in
2003 that the Veteran's knee and back
disabilities were related to his time in
service. If that examiner is not
available, another examiner should be
provided with the Veteran's claims file
and asked to provide an opinion as to
whether it is at least as likely as not (a
50 percent probability or greater) that
any diagnosed knee or back disability(s)
either began during service, or was caused
by the Veteran's time in service. A
complete rationale for any opinion offered
should be provided.
3. When the development requested has
been completed, the claims should be
readjudicated. If any claim remains
denied, provide the Veteran and his
representative with a supplemental
statement of the case and allow an
appropriate time for response before
returning the claim to the Board.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).